Andhra Pradesh High Court - Amravati
Bommana Subbanna vs The State Of Andhra Pradesh on 17 October, 2022
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
MAIN CASE No.: Crl.A.No.144 of 2022
PROCEEDING SHEET
Sl. DATE
ORDER
No
04. 17.10.2022 MGR, J & TMR, J
IA.No.1 of 2022
This application has been filed on behalf of the
petitioners-appellants-accused under Section 389(1)
Cr.P.C to suspend the sentence passed against the
petitioners in Sessions Case No.91 of 2019 on the file of
the III Additional Sessions Judge, Rajampet, and release
the petitioners on bail, pending criminal appeal.
Heard learned counsel for the petitioners-
appellants-accused and learned Additional Public
Prosecutor appearing for the respondent-State.
By the judgment impugned, the trial Court found
the petitioners-accused guilty for the offences punishable
under Section 302 read with 34 IPC and accordingly
sentenced to rigorous imprisonment and to pay fine of
Rs.500/- each, in default of payment of fine, to undergo
simple imprisonment for one month each.
Learned counsel for the petitioners submits that
P.Ws.1,2,3 & 5 are eyewitnesses. There is contradiction
in their evidence. There is no consistency as to the overt
acts attributed to A2. None of the witnesses spoke that
the petitioners attacked deceased. Even the wife of the
deceased, who was examined as PW14, did not support
the case of the prosecution. The trial Court, without
looking into the aspect that there are no specific overt acts
against the petitioners, merely on the ground that the
petitioners are present at the scene at the time of
commission of offence, found the petitioners guilty,
convicted and sentenced for the offence punishable
under Section 302 IPC. He has drawn the attention of
this Court to the evidence of PWs1 & 2 and submitted
that there are no specific overt acts attributed against each
of the petitioners-accused. He has also drawn the
attention of this Court to the evidence of the Doctor-
PW10 who examined PW.2 and submitted that as per the
evidence of PW10, the injuries sustained by PW2 are
simple in nature and could be caused by blunt object.
He further submits that in identical matter, i.e., in
Crl.A.No.180 of 2018, the common High Court granted
bail to the accused therein and placed on record a copy
of the said order.
He also relied upon the order dated 27.09.2016 in
Crl.A.MP.No.1476 of 2016 in Crl.A.No.947 of 2016 and
the decision of the Hon'ble Apex Court in Nagarjit Ahir
v. State of Bihar [(2005) 10 SCC 369].
On the other hand, learned Additional Public
Prosecutor opposed the application and submits that the
evidence of PW2 reveals that all the accused attacked the
deceased. Hence, the ingredient of common intention
under Section 34 IPC attracts to the petitioners and the
trial Court rightly convicted the petitioners for the
offence punishable under Section 302 read with 34 IPC.
He further submits that in Crl.A.No.180 of 2018 relied on
by the petitioners, this Court considered granting bail
inter alia observing that none of the witnesses therein
stated that the accused have attacked the deceased or
caused any injury to the deceased or to PW1 therein. But
in the case on hand, as per the evidence of PW2, all the
accused came upon the deceased and fell on him and A1
beat the deceased with a big stone on his chest and A2
beat the deceased with a big stick on the backside of the
head of the deceased; A1, A3, A4 and son of A1 Chinna
Reddaih fell upon them and beat them i.e., PW2,
deceased and PW1. He further submits that in
considering application for suspension of sentence,
appellate Court has to only examine as to whether there
is such patent infirmity in order of conviction that
renders order of conviction prima facie erroneous and
where there is evidence, that was considered by trial
Court, it is not open to court considering application
under Section 389 to reassess and/or re-analyse same
evidence and take different view, to suspend execution
of sentence and release convict on bail. In support of the
his contentions, he placed reliance on the decision of the
Supreme Court in Preet Pal Singh v. State of Uttar
Pradesh and another [(2020) 8 SCC 645].
Having considered the submissions of both the
sides and on perusal of the record, in the facts and
circumstances of the case, since PW2 categorically stated
in her evidence that all the accused came upon the
deceased, this Court prima facie is not convinced with the
submissions made by learned counsel for the petitioners
and found force in the submissions of learned Additional
Public Prosecutor. Hence, we are not inclined to
suspend the sentence and enlarge the petitioners on bail
at this stage.
Accordingly, the application is dismissed.
___________
MGR, J
___________
TMR, J
Vjl
